THE

Further Comments on Executive Order 13083

I've read the offending Executive Order 13083. The problem here
goes deeper than the specifics of the apparent vast overreaching of
one particular Executive Order.
Executive Orders in general have a certain quasi-legal status --
which means no legal status at all, but nobody has really bothered to
challenge them, so they've grafted themselves onto our constitutional
system.
Technically, Executive Orders are just orders to executive
agencies (which have an uncertain constitutional status to begin with)
dealing with how they should conduct themselves. That's fine, if all
we're talking about is instructions on how to reserve vacation time
and mandates not to waste paperclips, but we all know that Executive
Orders have wandered far beyond such internal matters. Instead, we
now have the President ordering agencies to act as if a law had been
passed, in the absence of such a law. This is where the recent "ban" on importing military-style
semi-automatic rifles comes from. U.S. Customs was instructed to
refuse entry to shipments of such weapons, as if they were illegal,
even though they are not. At best, such orders skate along as forced
interpretations of laws actually passed by Congress.
This new Executive Order, though, doesn't even appear to pretend
to piggyback on matters of internal interest to agencies or on
interpretations of statutory law -- it's simple rule by decree -- a
nasty bit of work.
Couched in phrases of respect for the Constitution and the
principles of federalism is a formal structure for federal agencies to
bind and bypass state governments. Technically, the order says that,
"Agencies may limit the policymaking discretion of States and local
governments only after determining that there is constitutional and
legal authority for the action."
In practice, this means that agencies will do as they please until
a federal judge says otherwise.
The order does set out some rather wide-ranging grounds under
which federal agencies may act to circumvent state governments. One
of them, "When States have not adequately protected individual rights
and liberties," sounds good if we're talking about sending in the FBI
to stop the KKK from lynching blacks. These days, though, it's more
likely to apply to welfare claims and affirmative action.
More troublesome are the provisions under which federal agencies
may act, "When decentralization increases the costs of government,"
"When States would be reluctant to impose necessary regulations
because of fears that regulated business activity will relocate to
other States," and "When there is a need for uniform national
standards." These are slippery criteria that provide no limitation at
all -- in fact, they cover almost any situation.
The order sets out a formal structure for "consultation" with
state authorities who may object to federal action, but this boils
down to meeting with state officials, filing their objections, and
writing boilerplate justifications for federal actions.
If this Executive Order is allowed to stand by the courts,
permitting agencies to act with no statutory mandate or constitutional
authority, then it would mean the end not just of federalism in the
United States -- federalism is already well-eroded, but this would
certainly drive the last nail in the coffin -- it would also mean the
end of constitutional government. If the courts permit a president
and executive agencies to effectively supplant state governments, then
the legislative leg of the three-part separation of powers
(legislative, executive, judicial) is consigned to secondary
importance even at the federal level. The only effective restraint on
executive power would be lawsuits on constitutional grounds, with
policies presumably required to respect the much-eroded boundaries of
the First Amendment and the like.
I recommend a lawsuit at the first possible opportunity to test
the validity of the order before it becomes part of the legal
landscape. Any resident of an affected state should have standing to
bring such a suit.
This order is not good news.

J.D. Tuccille, a New York-based writer and veteran of political
campaigns, civil liberties groups, and wee-hours bitch-fests with
clueless folk who see nothing wrong with treating mature adults like
public resources and indentured servants, is almost certainly the only
NRA member living in New York City's East Village.
He is
also the proprietor of the Civil Liberties site, a spot
for no-holds-barred advocacy of personal freedom. Here gun owners
meet free speech advocates and both sit down for a drink with tax
resisters and drug legalizers. So come on in and hash out ideas about
freedom and individuality in a world that sometimes seems to have lost
faith in those ideals. Whether you're looking for a home-away-from
home or just a good argument, the Civil Liberties site can
accomodate you: http://civilliberty.miningco.com/.

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